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Jatindra Nath Vs. Malai Ram Show - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 380 of 1948
Judge
Reported inAIR1953Cal352
ActsWest Bengal Premises Rent Control (Temporarty Provisions) Act, 1950 - Sections 14 and 18(5); ;Bengal House Rent Control Order, 1942; ;Transfer of Property Act, 1882 - Section 106
AppellantJatindra Nath
RespondentMalai Ram Show
Appellant AdvocateApurbadhan Mukherjee and ;Sachindra Chandra Das Gupta, Advs.
Respondent AdvocateNani Coomer Chakravarti and ;Chandra Kumar Chatterjee, Advs.
DispositionAppeal dismissed
Cases ReferredGanga Prasad v. Prem Kumar
Excerpt:
- .....accordingly, the plaintiff served a notice to quit on the defendant on 19-7-1945 and brought the present suit for ejectment and the other reliefs, mentioned above, on 29-9-1945, after obtaining the necessary permission from the rent controller under the law then in force.4. both the courts below have decreed the plaintiff's suit holding 'inter alia' that the notice to quit (copies whereof are exs. 2 and 3 (a) ) was legal, valid and sufficient and that it had been properly served upon the defendant and had duly terminated his tenancy. in this appeal against the said decree for ejectment mr. mukherjee has, as stated above, raised only two contentions which have been mentioned above.5. admittedly, the suit was instituted on 29-9-1945. at that time the bengal house rent control order, 1942.....
Judgment:

P.N. Mookerjee, J.

1. In this appeal by the defendant which arises out of a suit for ejectment, arrears of rent and damages, two questions have been raised by Mr. Mukherjee appearing for the defendant-appellant. The first is whether the defendant-appellant is entitled to any benefits under either Section 18(5) or Section 14, West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the second question relates to the legality, validity and sufficiency of the notice to quit which, according to the plaintiff-respondent and the Courts below, determined the tenancy in the present case.

2. The material facts as found by the Courts below are not now in dispute and they are as follows:

3. The defendant was a monthly tenant under the plaintiff in respect of the two rooms in suit in holding No. 172, Panchanantala Road, Howrah, at a rental of Rs. 12/- per month. There was default in payment of rent and, therefore, the plaintiff instituted a suit for recovery of over nine months' rent and therein the plaintiff obtained a decree against the defendant. Even after the institution of the said suit the default in the payment of rent continued and, accordingly, the plaintiff served a notice to quit on the defendant on 19-7-1945 and brought the present suit for ejectment and the other reliefs, mentioned above, on 29-9-1945, after obtaining the necessary permission from the Rent Controller under the law then in force.

4. Both the Courts below have decreed the plaintiff's suit holding 'inter alia' that the notice to quit (copies whereof are Exs. 2 and 3 (a) ) was legal, valid and sufficient and that it had been properly served upon the defendant and had duly terminated his tenancy. In this appeal against the said decree for ejectment Mr. Mukherjee has, as stated above, raised only two contentions which have been mentioned above.

5. Admittedly, the suit was instituted on 29-9-1945. At that time the Bengal House Rent Control Order, 1942 was in force at Howrah. So far, therefore, as the recent Rent Laws are concerned, this case would, in my opinion, be governed by the provisions of the said Rent Control Order, 1942, unless there be something in the subsequent Rent Laws applicable to the present case. Mr. Mukherjee has argued that Sections 14 and 18(5) of the Rent Act of 1950 would be applicable to the present case. His argument is that the said sections are retrospective and apply to the present case. In my opinion, this argument cannot be accepted. Section 14, so far as it confers benefit upon the tenant is not retrospective except to the extent that it is attracted by Section 18(5). Unless, therefore, Section 18(5) applies to the present case Section 14 cannot be of any assistance to the appellant.

6. Dealing with this part of the case, Mr. Mukherjee urges that Section 18(5) is expressly retrospective and applies to pending cases. The difficulty, however, is that the section is retrospective only to this extent that 'it applies to a pending action for ejectment only when that action is of such a type that no decree of ejectment would be passed therein except on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, or after the recent amendment of the said Section 18(5) on the ground that the interest of the tenant in the premises in question has been 'ipso facto' determined under the provisions of Sub-section 3 of Section 12, West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.' The portion underlined (here in ' ') above indicates that, in order that Section 18(5) may apply, the case must be one where the decree for ejectment can be passed only on the ground of default in payment of arrears of rent or 'ipso facto' determination of the tenancy under the Act of 1948. The present case does not, in my opinion, fall within that description. The suit in the present instance was, as I have said above, instituted at a time when the Rent Control Order, 1942 was in force. There is nothing in the Act of 1948 which makes its provisions applicable to pending actions and, therefore, no part of the Act of 1948 can apply to the present case. See the case of --'Monomohan Moitra v. Gobinda Das', 55 Cal WN 6. If, therefore, any decree for ejectment can be made in the present case it will be made not on any 'ground' under the 1948 Act but on 'grounds' outside the same. Section 18(5) of the 1950 Act, whether before or after amendment, cannot, therefore, be invoked by the appellant in his aid. This view is amply supported by the Bench decision of this Court in the case of -- 'Joy Kumar v. S.K. Choudhury', 55 Cal WN 471. I hold, therefore, that Section 18(5) of the Act of 1950 is not applicable to the present case and that, accordingly, Section 14 also cannot apply.

7. Even assuming that Section 14 is retrospective by itself and applies to pending cases independently of Section 18(5), the position will not be altered in the present case as apart from anything else, the defendant, having made defaults on more than three occasions within, a period of 18 months in the payment of two months' rent must be held to have disentitled himself to the benefits, if otherwise available, of Section 14, under the proviso thereof. This follows from the Bench decision of this Court in the case of -- 'Sreenarain Mansingka v. Amarnath Mishra', 87 Cal LJ 4, which has held that, for purposes of the proviso to Section 14, pre-Act defaults are relevant and have to be taken into account, and sitting singly, I consider myself bound by that decision.

8. In expressing myself as above I have not overlooked the fact that the Bench decision, referred to above, was pronounced in an Original Side Appeal of this Court. To me, however, that appears to be of no consequence as, notwithstanding opinions to the contrary sometimes expressed, I feel no hesitation in holding that a Bench decision, pronounced on either Side of this Court, is, nevertheless, a Bench decision of this Court and is, as such, equally binding upon all its Judges, sitting singly. I hold, therefore, that I am bound by the decision reported in -- 'Sreenarain Mansingka v. Amarnath Mishra', 87 Cal LJ 4 and must accordingly, reject the appellant's claim to protection under Section 14 of the Act of 1050.

9. The first contention of Mr. Mukherjee must, therefore, fail and is overruled.

10. The contention regarding the notice to quit raises question of some nicety and considerable importance. The relevant portion in the notice to quit is in these terms:

'Notice is hereby given to you to vacate and deliver up possession of the said two rooms with the end of 31-7-1945 or at the end of a month of your tenancy which would expire next after fifteen days from the receipt of this notice.'

Mr. Mukherjee contends that the notice is illegal, invalid and insufficient. In developing this contention Mr. Mukherjee has advanced the following three arguments namely, (1) that the notice having admittedly been served on 19-7-1945, it is illegal, invalid and insufficient so far as it demands possession 'with the end of 31-7-1945' as in such circumstances, it cannot be a fifteen days' notice to quit; (ii) that the notice, so far as it demands possession 'at the end of a month of your tenancy which would expire next after 15 days from the receipt of this notice', is also bad, invalid and insufficient as it is vague and indefinite and, therefore, inappropriate and ineffective in law to terminate the tenancy; and (iii) that the notice is also bad and invalid as the demand for possession, contained in it, being in the alternative, renders the notice bad for uncertainty and therefore, void, or, at least, ineffective in law to determine the tenancy.

11. Argument (i) noted above has no answer and must be accepted, but that would not be sufficient to invalidate the notice to quit. Unless, therefore, either of the other two arguments (ii) and (iii) Mr. Mukherjee noted above can be accepted the contention raised on the notice to quit must fail.

12. In judging the soundness of the said two arguments (ii) and (iii) it has to be remembered, at the outset, that the relevancy and applicability of English decisions on this branch of the law to Indian conditions has been expressly recognised by the Judicial Committee in the case of --'Harihar Banerjee v. Ramsoshi Roy', 45 Ind App. 222 (P.C.). It is also necessary to recall in this connection that in this country and in England the rule is firmly established that the construction of notices to quit should be such as to 'rationally interpret' lame and inaccurate notices & make them sensible where the recipient cannot have been misled as to the intention of the giver : See -- 'Doe d Williams v. Smith', (1836) 5 Ad & EL 350 and -- 'Wride v. Dyer', (1900) 1 QB 23 which were cited with approval in the above Privy Council decision, that a liberal construction, ought to be put upon a notice to quit and it should not be defeated by inaccuracies either in the description of the premises: See -- 'Doe d Cox v. Roe', (1802) 4 Esp 185, -- 'Shama Churn v. Wooma Churn', 25 Cal 36, --'Giridhari v. Purnendu', 68 Cal LJ 481 and 45 Ind App. 222 (P.C.), referred to above, or the name of the tenant: See --'Doe v. Spiller', (1807) 6 Esp 70 the principle of which decision must be held to be applicable to India in view of the observation made in '45 Ind App 222 (P.C.)' or the date of expiry of the notice: See -- 'Sidebotham v. Holland', (1895) 1 Q B 378, --'Doe d Williams v. Smith', (1836) 5 Ad & El 350, -- 'W. Davis Ltd. v. Huntly', (1947) 1 A.U.E.R. 246, --Gnanaprakasam v. P.S. Vaz, 60 Mad LJ 293, -- 'Tika Ram v. Dooji Maharaj', 1934 All LJ 674, and, further, that the test of its sufficiency would be not what it would mean to a stranger ignorant of all facts and circumstances of the tenancy in question but what it would mean to the tenant, presumably conversant with all those facts and circumstances: see -- 'Harihar Banerjee v. Ramsoshi Roy', 45 Ind App 222 (P.C.). In addition to the above, the rule is also well established that notices to quit are to be construed not with a desire to find faults with them which would render them defective but they are to be construed at 'res magis valeat quam pereat': see -- 'Harihar Banerjee v. Ramsoshi Roy', 45 Ind App. 222 (P.C.).

13. The legality, validity and sufficiency of a notice to quit has to be examined in the light of the above rules, the soundness of which cannot now be questioned, and, as a result of such examination in the present case, I have unhesitatingly come to the conclusion that arguments (ii) and (iii) of Mr. Mukherjee are unsound and cannot be accepted. In my opinion, the notice to quit, served in the present case, is neither vague nor insufficient and not bad in law and the defendant's tenancy has been duly determined thereby.

14. Mr. Chakravarti, appearing for the plaintiff-respondent, has drawn my attention to the English decisions reported in -- 'Doe D Digby v. Steel', (1811) 170 ER 1324 -- 'Doe v. Timothy', (1847) 175 ER 145 and --'Doe D Baker v. Woombwell', (1810) 170 ER 1251 (2) which hold, in effect, that a notice to quit demanding possession at the end of the anniversary of the commencement of the tenancy is not vague or insufficient or invalid. The leading case of --'Sidebotham v. Holland', (1895) 1 QB 378, confirms that view. To my mind the principle underlying these decisions is sound and ought to be applied in this country. Argument (ii) of Mr. Mukherjee must, therefore, fail.

15. Reference may now be made to the following passage occurring in Mulla's Transfer of Property Act, Edn. 3, at p. 653, which runs thus: 'It is usual after mentioning the date of the anniversary of the tenancy to add in the alternative some general words as 'at the end of the year of the tenancy which will expire next after the end of one half year from the date of the service of this notice' '. That passage (which first appeared in the 1st Edition of the book in 1933 and was reproduced verbatim without any change -- in the two later editions of the book) suggests that demand for possession in the alternative form is perfectly valid and well recognised in law. The English case of -- 'Doe D Williams v. Smith', (1836-5 Ad. & El 350) cited above, and --'Doe D Digby v. Steel', (1811) 3 Camp 115 at p. 117, and -- 'Crate v. Miller', (1947) 2 A. U. E. R. 45, clearly support the validity of such demand. There is also nothing, either in principle or in the authorities, which runs counter to this suggestion of the learned Author and, accordingly, I am inclined to accept the same. Tested in this background argument (iii) of Mr. Mukherjee must also fail.

16. It further appears that the question, now before me, has also been judicially considered in other parts of this country. There are, at least two judicial decisions -- 'Sankar Ram v. Tulsi Bhagat', AIR 1921 Pab 307 and -- 'Ganga Prasad v. Prem Kumar', AIR 1949 All 173 which have a direct bearing on that question. These two decisions, in my opinion, clearly support the view that the notice to quit in the present case is good, valid and sufficient and, as I have already indicated above, I have no doubt in my mind that that view is correct and ought to prevail.

17. I would, accordingly, reject Mr. Mukherjee's second contention and hold that the notice to quit served in the present case is neither bad nor invalid nor insufficient & that it had duly determined the defendant's tenancy.

18. The result, therefore, is that all the contentions raised by Mr. Mukherjee fail and this appeal is dismissed. Having regard, however, to all the circumstances I make no order as to costs in this appeal.

19. Leave to appeal under Clause 15 of the Letters Patent is asked for and is granted.


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